AXU15 v Minister for Immigration and Border Protection [2017] FCA 850

FEDERAL COURT OF AUSTRALIA

AXU15 v Minister for Immigration and Border Protection [2017] FCA 850 Appeal from: AXU15 v Minister for Immigration & Anor [2016] FCCA 2646

File number: SAD 330 of 2016

Judge: BESANKO J

Date of judgment: 28 July 2017

Catchwords: MIGRATION – consideration of an application seeking an extension of time to file a notice of appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) – where delay is in the order of 25 days – where proper explanation for the delay – where Minister will not suffer any prejudice should the extension of time be granted – whether the proposed appeal lacks merit. MIGRATION – consideration of an appeal from a decision of the Federal Circuit Court dismissing the applicant's application for judicial review – whether the applicant articulated a claim or a claim clearly arose on what the applicant said at the Tribunal hearing – where applicant was represented at the hearing before the Tribunal – where the applicant had not mentioned the particular claim in extensive submissions to the Tribunal – where the relevant evidence was considered by the Tribunal on an existing claim – whether there was a real chance that government policy would change such that there were involuntary returnees to Iran – where argument not raised before the Tribunal or in the Federal Circuit Court – where not clear the real chance test would apply to government policy – where no evidence on the point.

Legislation: Migration Act 1958 (Cth) s 91R

Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 2003 HCA 26; (2003) 77 ALJR 1088 Minister for Immigration and Border Protection v SZSCA and Another (2014) 254 CLR 317 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1